Harout Torosian v. BMW of North America, LLC

The trial court must "carefully scrutinize the moving party's papers and resolve all doubts regarding the existence of material, triable issues of fact in favor of the party opposing the motion." (Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 36.) The court must strictly construe the moving party's declarations and liberally construe the opposing party's declarations. (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 575 [affirming trial court's granting of employer's summary judgment motion]; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [reversing summary judgment where 7

evidence suggested strong possibility trier of fact would resolve issues in favor of moving defendant, but not necessarily so].) "A triable issue of fact is created when the evidence reasonably permits the trier of fact, under the applicable standard of proof, to find the purportedly contested fact in favor of the party opposing the motion." (Loomis v. Amazon.com LLC (2021) 63 Cal.App.5th 466, 475 [reversing summary judgment where genuine issues of material fact existed on consumer's strict products liability claim].)

When, as here, a defendant moves for summary judgment, the California Supreme Court has explained the defendant's initial burden as follows:

All that the defendant need do is to “show[] that one or more elements of the cause of action ... cannot be established” by the plaintiff. [Citation.] In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively negate any such element—for example, himself prove not X.

(Aguilar, supra, 25 Cal.4th at pp. 853–854, original italics, footnotes omitted.)

Defendant Fails to Satisfy Its Initial Burden

The Act, popularly known as the "lemon law," provides various remedies to buyers of defective motor vehicles. The Act includes Civil Code section 1793.2, which governs a manufacturer's repair duties for an express warranty. Defendant moves for an order granting summary judgment, and alternatively, summary adjudication on the following grounds:

1. [Plaintiff's] First Cause of Action fails as a matter of law because all warranted defects were successfully repaired after a single repair attempt.

2. Plaintiff’s Second Cause of Action for violation of § 1793.2(b)’s 30-day repair requirement fails as a matter of law because repairs were completed within 30 days and Plaintiff has offered no evidence of damages caused by any alleged violation.

3. Plaintiff’s Third Cause of Action for violation of Civ. Code § 1793.2(a)(3), fails as a matter of law because BMW provided sufficient literature or replacement parts necessary to perform the two warranted repairs.

4. Plaintiff’s Fourth Cause of Action fails as a matter of law because all warranted defects were successfully repaired after a single repair attempt.

(Ntc., p. 2:1-10.)

Summary Judgment

A motion for summary judgment is generally directed toward an entire action or pleading. (Code of Civ. Proc., §437c, subd. (a).) By comparison “[a] party may move for summary adjudication as to one or more causes of action within an action ....” (Code Civ. Proc., § 437c, subd. (f)(1).) When a defendant moves for summary judgment, the defendant has the burden to show it is entitled to judgment on all theories of liability 8

alleged by the plaintiff. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717.) If a defendant fails to address all theories of liability alleged in the complaint, the trial court should stop its analysis and deny the motion for summary judgment:

If the defendant does not address an issue in a motion for summary judgment that has been raised in the plaintiff's complaint, it fails to meet its initial burden to show the plaintiff's action has no merit; the motion therefore fails to shift the burden to the plaintiff to oppose summary judgment. [Citation.]

(Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846.)

Here, the Complaint includes a fifth cause of action for breach of the implied warranty of merchantability. In its notice of motion, Defendant gives no notice to Plaintiff that Defendant seeks summary adjudication of the fifth cause of action. Nor does Defendant establish in its moving papers that the fifth cause of action has no merit. Therefore, Defendant fails to meet its initial burden to address all theories of liability alleged in the Complaint, and the court denies the motion for summary judgment.

Summary Adjudication of First and Fourth Causes of Action (Issues 1 and 4)

Although Defendant fails to address the fifth cause of action, the court must consider Defendant's alternate motion for summary adjudication of the first four causes of action. In its separate statement, Defendant designates each cause of action as issues one through four. Defendant relies on a total of fifteen different facts, or subsets of these fifteen facts, depending on the issue.1 Defendant analyzes the merits of the first cause of action (Issue 1) and the fourth cause of action (Issue 4) together, based on the same (restated) fifteen facts. The parties agree on the elements Plaintiff must prove to recover under the Act:

A plaintiff pursuing an action under the Act has the burden to prove that (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element).

1 Defendant's separate statement is confusing because Defendant renumbers the same facts,

depending on the issue. Defendant relies on the same complete set of 15 facts for Issue 1 and Issue 4. For Issue 2, Defendant relies on a subset of the same facts, then renumbers all of the facts except Fact Nos. 1 and 2, which remain the same as in Issue 1. Specifically, Defendant deletes Fact Nos. 3, 4, 8, and 9 (from Issue 1), then repeats and renumbers the remaining facts. For Issue 3, Defendant relies on a subset of 4 facts, restating its original Issue 1, Fact Nos. 5, 6, and 7, as Issue 3, Fact Nos. 1, 2, and 3, and renumbering Issue 1, Fact No. 15, as Issue 3, Fact No. 4.

(Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101, citing Civ. Code, § 1793.2; Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 886-887.)

Defendant relies on Silvio v. Ford Motor Co., (2003) 109 Cal. App. 4th 1205, which holds that a manufacturer must be allowed more than one attempt to repair a vehicle before the remedies under the Act become effective. (Id. at pp. 1208-1209.) Defendant contends Plaintiff cannot prove "the failure to repair" element because Plaintiff presented the Subject Vehicle for only two warranted repairs, and both warranted defects were successfully repaired after a single repair attempt.

Defendant submits evidence that before the first presentation of the Subject Vehicle on March 14, 2024, Plaintiff was notified of a recall campaign for the integrated brake system. (Fact Nos. 7, 9, 10.) On March 14, 2024, Plaintiff asked BMW Fresno about the status of the integrated brake system recall because he "was experiencing lapse of braking a little bit[.]" (Fact Nos. 9, 10 [Wasson decl., ex. 7, Torosian depo., p. 39:7-8].) Defendant acknowledges its representative refused Plaintiff's request for a safety inspection concerning the "lapse in braking.":

On March 14, 2024, Plaintiff inquired regarding the status of the integrated brake system recall when presenting the Subject Vehicle to BMW Fresno for service. BMW Fresno informed Plaintiff that the remedy was not yet available for the Subject Vehicle and promised to schedule a service appointment once the recall was ready.

(Fact No. 10; [see supporting Wasson decl., ex. 7, Torosian depo., p. 38:21-22 (Plaintiff stated, "That was my first instance of kind of being turned away onsite about the safety issue")].)

In addition to notifying the service dealer that he was concerned about the safety of his vehicle and the lapse in braking, Plaintiff called Defendant (manufacturer) the next day to request written documentation to ensure his safety. (Fact No. 11.) Defendant was unable to provide the written documentation requested by Plaintiff. (Ibid.) Defendant "addressed the integrated brake system recall for the Subject Vehicle" 47 days later, on April 30, 2024. (Fact No. 13.) In October 2024 Defendant issued a new recall notice because further hardware updates were required under the integrated brake system recall. (Fact No. 14.) On October 29. 2024, the Subject Vehicle was declared a total loss following an accident not caused by Plaintiff. (Fact No. 15.)

Defendant presents undisputed evidence to show the repair for Plaintiff's first and second presentations of the Subject Vehicle each took two days. (Fact Nos. 5, 6.) In its moving papers, with no citation to authority, Defendant contends, "All other 'repairs' performed on the Subject Vehicle were for recalls and product improvements performed prophylactically." (Memo., p. 10:20-21.) With no analysis, Defendant appears to argue it had no obligation to "address" the integrated brake system recall because the Subject Vehicle had only two nonconformities—the recall was strictly prophylactic and all problems with the brakes did not fall within the nonconformity element.

The Act defines a "nonconformity” as "a nonconformity which substantially impairs the use, value, or safety of the new motor vehicle to the buyer or lessee." (Civ. Code, § 10

1793.22, subd. (e)(1).) In its reply, Defendant argues 'Plaintiff has identified no competent evidence that prior to the April 30, 2024, recall remedy, BMW Fresno ever verified any integrated brake system malfunction in the Subject Vehicle . . . [or] duplicated a braking event[.]" (Rpy., p. 3:18-20.)

But Defendant itself presents evidence that Plaintiff expressed concern about the safety of the brakes on the Subject Vehicle, which he described as a "lapse in braking." BMW Fresno refused Plaintiff's March 14, 2024, request to schedule a service appointment for the brakes (Fact Nos. 9, 10), and Defendant refused to provide documentation to ensure the safety of the Subject Vehicle (Fact No. 11). Based on this evidence, a trier of fact might find that Plaintiff had a problem with the brakes, which affected the safety, value, or use of the Subject Vehicle, but upon request, Defendant and its representative refused to inspect or repair the Subject Vehicle, nor did they provide safety assurances until a remedy for the recall was ready.

Carefully scrutinizing Defendant's papers and resolving all doubts regarding the existence of material, triable issues of fact in Plaintiff's favor, the court finds Defendant's own submitted evidence provides a reasonable basis for the trier of fact to conclude it is more likely than not that Plaintiff presented the Subject Vehicle to BMW Fresno for inspection of the brakes on at least two occasions (March 14, 2024 [Fact No. 5 (see also March 15, 2024 [Fact No. 11]); April 30, 2024 [Fact No.7]); and Defendant or its representative refused to inspect, repair, or rule out the nonconformity in the Subject Vehicle (which affected the safety, use, or value of the Subject Vehicle) after a reasonable number of repair attempts—although the trier of fact might also reach the opposite conclusion. Therefore, Defendant falls to meet its initial burden of persuasion and production on the first and fourth causes of action and the burden does not shift to Plaintiff to raise a triable issue of material fact.

Summary Adjudication of Second Cause of Action (Issue 2)

Defendant directs its motion for summary adjudication on Issue 2 to Plaintiff's second cause of action. Plaintiff alleges Defendant failed to commence the service or repairs within a reasonable time to conform to the applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b), which provides:

Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay.

For Issue 2, Defendant offers two reasons for summary adjudication. First, in its moving papers, rather than focusing on when repairs were commenced, Defendant 11

provides evidence that the Subject Vehicle spent a total of 13 days out of service, in an attempt to show the repairs were "completed" within 30 days.

Defendant also presents evidence that the repair for the integrated brake system commenced 47 days after Plaintiff presented the Subject Vehicle for the brake problem. (Fact Nos. 3, 9 [Issue 2].) In its reply, Defendant relies on the extension of the 30-day requirement for a delay caused by conditions beyond the manufacturer's control. (Civ. Code, § 1793.2, subd. (b).) But Defendant presents no facts in its moving papers to show why the delay to commence the brake service for more than 30 days was beyond its control. Therefore, Defendant fails to meet its burden to establish its first reason for summary adjudication on Issue 2.

For its second reason, Defendant argues that Plaintiff has suffered no damage. As the party moving for summary adjudication, Defendant must present evidence to show not only that Plaintiff has no evidence on an essential element, but Defendant "must also show that the plaintiff cannot reasonably obtain needed evidence[.]" (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889, italics original [trial court erred in granting summary judgment in defendant's favor where defendant failed to present evidence to show plaintiff could not reasonably obtain needed evidence].) Here, Defendant fails to establish that Plaintiff has no evidence to prove the alleged braking defects have substantially impaired the use, safety, or value of the Subject Vehicle.

The court finds Defendant fails to meet its initial burden to show the facts warrant a conclusion, as a matter of law, that the delay to commence the requested repair was due to circumstances outside of Defendant's control or that Plaintiff suffered no damage. Therefore, Defendant falls to meet its initial burden of persuasion and production on the second cause of action and the burden does not shift to Plaintiff to raise a triable issue of material fact.

Summary Adjudication of Third Cause of Action (Issue 3)

For his third cause of action, Plaintiff alleges a violation of Civil Code section 1793.2, subdivision (a)(3), which requires Plaintiff to show Defendant failed to "[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period." (Ibid.) Defendant presents four renumbered facts under Issue 3—the March 14, 2024, request to perform the brake recall (Fact No. 1); the March 28, 2024, presentation (Fact No. 2); Plaintiff's April 30, 2024, presentation of the Subject Vehicle to perform the brake recall (Fact No. 3); and the Subject Vehicle was declared a total loss after an accident caused by a third person before Defendant could "effectuate the hardware updates" (Fact No. 4).

Without citation to authority, Defendant disregards Plaintiff's requested repair of the integrated brake system on March 14, 2024, and the evidence Defendant itself submits of Plaintiff's deposition testimony that he continued to experience braking problems until the accident:

Q [By Mr. Wasson] Okay. I'm going to stop sharing my screen. We just had two repair orders with non-recall-related issues that we went over. To tie a bow on everything, 12

are there any other issues that you have experienced that we have not discussed today?

A [By Plaintiff] I did -- as stated previously, I did have issues with the braking. As I said, me feeling it as a driver and hence why it initiated me to make some phone calls to the dealership and to the manufacturer directly to ask for assistance on next steps. But that was the main subject of my issue and concerns. The limited amount of braking that was available on my vehicle.

(Wasson decl., ex. 7, Torosian depo., p. 52:13-25.)

Defendant's evidence fails to meet its initial burden of persuasion and production to show, as a matter of law, that Plaintiff cannot prove that Defendant failed to make sufficient service literature and replacement parts available to its authorized repair facility to effect repairs within the warranty period. Therefore, the burden does not shift to Plaintiff to raise a triable issue of material fact on Issue 3.

Conclusion

When the moving party fails to make the initial showing, it is unnecessary to review the opposing party's evidence and the court must deny the motion. (Aguilar, supra, 25 Cal.4th at p. 849-850; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940 [defendant's motion for summary judgment should have been denied without looking at opposing evidence because defendant failed to refute tenable pleaded theories].) Here, the burden here does not shift to Plaintiff to raise a triable issue of fact and the court may stop its analysis here. Therefore, the court denies Defendant's motion for summary judgment and the alternative motion for summary adjudication on the first, second, third, and fourth causes of action of the Complaint.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 6/23/2026. (Judge’s initials)

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